PART III is a condition of sale that no further evidence of the T 10, CH. 3. t errors and tions. identity of the parcels shall be required than what is afforded by the abstract, or by the deeds, instruments, or other documents therein abstracted, and the descriptions in the different documents differ among themselves and from the description in the particulars of sale, the purchaser is entitled to have some proof of the identity aliunde. For, in the case supposed, the deeds themselves do not afford evidence of the identity, but constitute the subject of the doubt as to the identity (a). Where it is stipulated that the vendor shall deduce a good title, and that he shall deliver up to the purchaser of the greater part in value of the estate all the title deeds and documents in his custody, but shall not be bound or required to produce any original deed or other documents than those in his possession and set forth in the abstract, the word " produce” means "deliver up." The stipulation does not exempt the vendor from producing the deeds themselves for the purpose of verifying the abstract. For otherwise the vendor might have furnished an abstract of a good title, and yet he might not have one deed, or only some immaterial deeds, corresponding with the abstract, so that the abstract might be wholly unverified, and the purchaser might have no title at all (b). 1650. Condition as A condition that misdescriptions and errors shall not mislescrip annul the sale, but that a compensation shall be given for the difference in value, does not extend to fraudulent errors or very substantial misdescriptions (e). In some cases the purchaser will, in others he will not, lose his right to compensation by taking a conveyance (d). 1651. (a) Flower v. Hartopp, 6 Beav. 476. (b) Southby v. Iutt, 2 My. & Cr. 207. (c) Sugd. Concise View, 20-1; Phillips v. Caldeleugh, L. R. 4 Q. B. 159; see Whittemore v. (d) Manson v. Thacker, L. R. 7 Ch. D. 620; In re Turner and Skelton, L. R. 13 Ch. D. 130; Palmer v. Johnson, L. R. 12 Q.B. D. 32. T. 10, CH. 3. defect where Where a defect is a latent one, and the purchaser cannot by the greatest attention discover it, if the vendor is aware Latent of it and does not acquaint the purchaser with the fact, the estate is contract is not binding at law or in equity, although he all faults. bought the estate with all faults (a). 1652. bought with to expenses. [There must have been express conditions where the seller Condition as intended to throw upon the purchaser the expense of searches, or the expense of travelling to a distant place to examine the abstract with the deeds, or the like (b). Where the title deeds could not be delivered up, it must have been provided that the expense of attested copies thereof, and of covenants to produce them, should be borne by the purchaser, as otherwise the expense would fall on the vendor; and if the property was sold in several lots, and the deeds were numerous, a large proportion of the purchase money might be thereby absorbed (c).] 1653. By the stat. 37 & 38 Vict. c. 78, s. 2, rule 4, it is enacted that, "subject to any stipulation to the contrary," "such covenants for production as the purchaser can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself, and on behalf of and by necessary parties other than the purchaser." [And this enactment is extended by the provisions of stat. 44 & 45 Vict. c. 41, s. 3 (Appendix) (d).] 1654. to posses As a general rule, where a contract for purchase provides Condition as that "possession" shall be given by a certain day, the word sion. possession" must be understood to mean possession with a good title shown (e). 1655. any A condition for payment of interest, if, by reason of "unavoidable obstacle," the contract cannot be completed (a) Sugd. Concise View, 238. (b) Sugd. Concise View, 24. (e) Sugd. Concise View, 24; 9 Jarm. & Byth. by Sweet, 8. (d) Infra, par. 1663a. (e) Tilley v. Thomas, L. R. 3 Ch. Ap. 61. Condition as to interest. T. 10, CH. 3. PART III by a day named, does not apply to a delay occasioned by the state of the title (a). 1656. Condition as to timber. Condition as to fixtures. to deeds. A condition to pay interest, if, "from any cause whatever," the purchase is not completed by the time fixed, does not apply to a case of delay occasioned by the misconduct of the vendor (b). 1657. If it is simply stipulated that the purchaser shall pay for timber, he must even pay for trees which are not strictly timber, but yet are considered such according to the custom of the country (e). 1658. In the absence of any stipulation or indication to the contrary, common fixtures which would descend to the heir pass to the purchaser under the common conveyance. And therefore, where it is intended that the purchaser shall pay for fixtures, this should always be expressed (d). 1659. Condition as On a sale, by auction, of lands in lots, the purchaser of the lot which is of the largest value is entitled to the custody of the deeds relating to all the property, unless there is a stipulation to the contrary. But if there is a condition that the purchaser of "the largest lot" shall have them, that means the largest in superficial acreage (e). 1660. Conditions on sale of leaseholds. By the stat. 37 & 38 Vict. c. 78, s. 2, rule 5, it is enacted that, "subject to any stipulation to the contrary," "where the vendor retains any part of an estate to which any documents of title relate he shall be entitled to retain such documents." 1661. If the estate is leasehold, and the vendor cannot procure an abstract of the lessor's title, this fact should be stated in the conditions, in order to preclude the purchaser from insisting upon the production of the lessor's title (ƒ). (a) Sugd. Concise View, 495. Beav. 528. v. (c) Sugd. Concise View. 22-33. Jarm. & Byth. by Sweet, 35. (e) Griffiths v. Hatchard, 1 K & J. 17. (f) Sugd. Concise View, 25, 268; but see infra, par. 1663a. T. 10, CH. 3. Conditions intended to preclude objections on account of PART III. the lessor's title are to be construed with great strictness, and must be very unambiguous and conclusive to be of any avail. And a condition that the seller shall not be liable to produce the lessor's title, or that no requisition or inquiry shall be made respecting the title, does not exclude the purchaser from showing aliunde, without the aid of requisitions, that the title is bad (a). Where a lease is sold, although the reference to the lease binds the purchaser, yet unusual covenants should be stated in the conditions (b). As surrendered leases are given up to the lessor, if the premises are held under a renewed lease expressly granted in consideration of the surrender of a former lease, there should be a condition that the purchaser "shall not require the production of, or the deduction of the title to, any surrendered lease which is referred to in the subsisting lease" (c). 1662. Vict. c. 41, A proviso in a contract for sale, that, if either party Penalty. break the agreement, he shall pay a sum of money to the other, does not give either party an option to break the agreement, but it is of the nature of a penalty; and consequently a specific performance will be decreed, just as if no such proviso had been inserted (d). 1663. [Certain specified conditions are now made applicable Stat. 44 & 45 to contracts for sale, by stat. 44 & 45 Vict. c 41 (Appendix), which enacts, by s. 3: "(1) Under a contract to sell and veyancing assign a term of years derived out of a leasehold interest Act, 1881. in land, the intended assign shall not have the right to Application call for the title to the leasehold reversion. (2) Where land of copyhold or customary tenure has been converted into freehold by enfranchisement, then, under a contract (a) Sugd. Concise View, 14, 268; 9 Jarm. & Byth. by Sweet, 13; Waddell v. Wolfe, L. R. 9 Q. B. (b) Sugd. Concise View, 19. 8. 3. The Con and Law of Property of stated conditions of sale to all purchases. T. 10, CH. 3. PART III [to sell and convey the freehold, the purchaser shall not have the right to call for the title to make the enfranchisement. (3) A purchaser of any property shall not require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, contained in the abstracted instruments, of any deed, will, or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, inrolment, or otherwise. (4) Where land sold is held by lease (not including under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase. (5) Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and, on production of the receipt for the last payment due for rent |